Criminal Law Flashcards
what are state of affairs / strict liability crimes?
what is the justification for them?
where the actus reus = a state of affairs / set of circumstances
D may be liable for a state of affairs crime even though they had no control over the situation
the justification for these crimes is public policy - it is regarded as more important to prevent drunken or drugged motorists from driving than being concerned with unfairness in individual circumstances.
no MR
the general rule in criminal law is that there is no liability for omissions…
under what circumstances does a D have a positive duty to act (and if they fail to do so they may be criminally liable via omission)?
in circumstances where there is a:
∘ a statutory duty to act;
∘ a contractual duty to act (e.g. railway worker fails to close gate on their lunch despite their contract saying so and someone crosses the tracks and dies / doctor, paramedic and lifeguard working etc);
∘ a special relationship between the victim and the defendant (e.g. parent and child)
∘ a duty based on a voluntary assumption of care; and
∘ a duty that arises because the defendant, having created and become aware of a dangerous situation, fails to take reasonable steps to avert it.
in order to prove the actus reus of an offence, causation must be proven.
what are the two types of causation and what are their tests?
factual - but for test
legal - D’s actions must be a substantial and operating cause of the consequence
summarise the legal test for causation
- the consequence must be attributable to to a culpable act or omission
- the culpable act must be a more than minimal cause of the consequence
- the culpable act need not be the sole cause (multiple people may be liable for the same crime)
- the D must take their victim as they find them
- the chain of causation must not be broken
list the possible ways in which the so- called chain of causation may be broken
- the victim’s own acts
- third party intervention (a D will not be liable if a third party’s intervening act is either free, deliberate and informed, or is not reasonably foreseeable)
- medical negligence
- intervening events (acts of God) - is it reasonably foreseeable?
what does the law say about the victim’s own acts breaking the chain of causation?
if the V has done something after the initial act/omission of the accused but before the consequence occurs and that intervention is ‘free, deliberate and informed’ (voluntary), then legal causation will not be established
exceptions
1) escape - the court will consider…
* whether the escape is within the range of reasonable responses to be expected of a victim in that situation;
* whether the victim’s response is proportionate to the threat; or
* whether it is so ‘daft’ as to be a voluntary act; and
* the fact that the victim is acting in ‘the agony of the moment’ without time for thought or deliberation.
2) suicide - case where acid was thrown over V by D, V applied to be euthanised in Belgium because of the injuries - voluntary euthanasia didnt break the chain of causation
under what circumstances will medical negligence break the chain of causation?
where the negligent medical treatment is ‘so independent of the defendant’s act’ and ‘so potent in causing death’ that the contribution made by the defendant was rendered insignificant
what is the status of the legal + evidential burdens of proof before AND after a D introduces a defence.
what is the status of the standard of proof before AND after a D introduces a defence?
before D introduces defence….
P has the legal and evidential burden - the prosecution must prove each element of an offence by providing evidence
standard of proof = beyond reasonable doubt
when a D introduces a defence…
the burden of proving the offence always lies with P but
depending on the defence being used, the legal burden of proving the defence may faall with the D - BUT lower standard of proof - on the balance of probabilities
- to define the different types of mens rea of intention, recklessness, negligence
and strict liability; - to understand how these impact on criminal offences and appreciate the
practical implications for clients; and - to explain the concepts of transferred malice and the coincidence of actus reus
and mens rea.
what is the difference between direct and indirect intention?
indirect intention = when the consequences that the defendant achieves by committing the actus reus are a by- product, so not the principal purpose, of what the defendant was aiming to do.
what is the test for indirect intention?
(1) Was the consequence virtually certain to occur from the defendant’s act (or omission)? - objective test
(2) Did the defendant appreciate the consequences were virtually certain to occur? - subjective test
define recklessness
how is is different to indirect intention?
D takes an unjustified risk
similar to indirect intention but it is a less culpable form of MR as it involves foresight of possible or probable consequences, instead of an appreciation of virtually certain
consequences
what is the test for recklessness
was the risk unjustified? (objective)
did this D personally foresee the risk (subjective)
did D go on to take the risk?
if all answers yes = D is reckless
what is the difference between recklessness and negligence?
- Recklessness is the conscious taking of an unjustifiable risk.
- Negligence is the inadvertent taking of an unjustifiable risk.
what is the test for the MR of negligence?
A person is punished simply for failing to measure up to the standards of the reasonable person - objective test
